5.  The applicant was born in 1974 and lives in Salaspils.
6.  The applicant, who had been working as a bailiff (tiesu izpildītājs) since 1996, was arrested and eventually convicted of corruption offences. He was sentenced to five years’ imprisonment. The events leading up to the final decision adopted by the Senate of the Supreme Court on 17 March 2006 unfolded as follows.
7.  On 9 November 2001, following a request by a private company, R.L., for its claim to be secured in a commercial dispute with another private company, M., a court issued an order for M.’s moveable property to be seized. On 15 November 2001 the director of R.L., O.V., submitted a writ of execution of the said decision to the Riga City Vidzeme District Bailiffs’ Office (Rigas pilsētas Vidzemes priekšpilsētas Tiesu izpildītāju kantoris). The applicant was the senior bailiff of that office, but the specific matter was entrusted to another bailiff of the same office, G.P. On 19 November 2001 G.P. seized M.’s property, which chiefly consisted of fur coats, transported it to another location, and entrusted its storage to O.V. On the same day representatives of M. contacted the applicant, asking him to ensure that the coats were stored in proper conditions, to prevent any damage. The applicant alleged that he then decided to entrust the storage of the seized property to an independent third party, whose costs would have to be reimbursed by R.L. Accordingly, the applicant directed his secretary to prepare documentation for the request of an advance payment from R.L. for the expected costs of the storage. The next day the applicant signed a document requesting an advance payment of 500 Latvian lati (LVL), which he considered would be sufficient to cover the costs of transporting the fur coats to an independent storage facility and obtaining an estimate of the value of the coats from an expert.
8.  On 28 November 2001 the order of 9 November for the seizure of the property was quashed and a court ordered the immediate return of the seized property to M. On 5 December 2001 the bailiffs’ office sent a letter to O.V., informing him that the seized property must be returned to M. On 7 December 2001 R.L. lodged an ancillary complaint against the decision of 28 November. Under Latvian law as it stood at the relevant time, the lodging of such a complaint had suspensive effect.
9.  It appears that on 14 December 2001 O.V. submitted a complaint to the police, alleging that the applicant and G.P. were asking him to pay a bribe of LVL 500, failing which the seized property would be returned to M. in accordance with the decision of 28 November. On the same day a recording was made of a telephone conversation between S.Ž. (a lawyer for R.L.) and G.P. The relevant part of the conversation ran as follows:
“S.Ž. Listen, [G.P.], [O.V.] called me. G.P. Well, not me, I have a court decision that he has to return this property, it says “return”. Do you understand? And I cannot do anything else about that.
10.  On the same day a recording was made of a telephone conversation between the applicant and S.Ž. Also on the same day O.V. and S.Ž. visited the applicant in his office. Their conversation was secretly recorded.
11.  On 17 December 2001 O.V. went to the bailiffs’ office to receive a document confirming that the decision of 28 November had been suspended pending examination of an ancillary complaint lodged by R.L.
12.  It appears that on 18 December 2001 a prosecutor from the Office of the Prosecutor General approved an investigative test (operatīvais eksperiments) to look into suspicions against the applicant and G.P.
13.  On 18 December 2001 O.V. went to the bailiffs’ office. The applicant alleged that O.V. refused to accept from G.P. a copy of the document which had been prepared the previous day, and instead insisted on speaking to the applicant, who was not in the office at that time. When the applicant arrived at the office O.V.’s conversation with him was secretly recorded. The relevant part of it ran as follows:
“O.V. I have money.
The applicant How much is there? O.V. Listen ... you count [the money], so that well, just in case, you divide it yourself, I don’t know how much will be given to [G.P.].
14.  The applicant indicated that during the conversation O.V. had tried to hand him the money, and later placed it on his desk. He also stated that he assumed that O.V. must have placed the money under some books on his desk when he left the office to stamp the prepared document, as the money was not on the desk when he returned to the office.
15.  After O.V. left, the applicant was detained by the police. The applicant stated that he did not provide any explanation of what had happened to the money, since he thought O.V. had taken it with him to pay G.P. He was then handcuffed and traces of a luminescent substance which had been used to mark the money offered by O.V. were observed on his hands under a special light.
16.  After some time the police officers told the applicant that they had received authorisation to search his office. The case file contains a copy of a decision (dated 18 December 2001) to search the applicant’s office. The decision is on a standard pre-typed form (the top right-hand corner contains an indication that it is “Form 33”) with the blanks filled in typescript or by hand. One of the pre-typed fields is to be completed to indicate which court should subsequently be informed of the decision authorising a search. In the top left corner of the decision is a signed prosecutor’s resolution authorising the search. The resolution is dated 18 November 2001. The search was filmed. During the search LVL 500 was found on the applicant’s desk under some books.
17.  On 19 December 2001 the police informed a judge of the Riga City Centre District Court that a search had been authorised and carried out.
18.  On 29 January 2002 the applicant was charged with extortion carried out by an organised group and with wilful abuse of official position. The criminal proceedings that had been initiated against G.P. were terminated on 15 February 2002. In April 2002 the applicant’s criminal case was transferred to the first-instance court (the Riga Regional Court).
19.  The Riga Regional Court delivered its judgment on 18 March 2005. The court found the applicant guilty. It held that on 20 November 2001 the applicant had requested a bribe from O.V. to allow the fur coats belonging to M. to be kept in O.V.’s possession. The bribe was held to have been requested as an advance payment of non-existent storage costs.
20.  When testifying in court the applicant indicated that the payment requested from O.V. had been entirely legitimate. He admitted that the conversations that had been surreptitiously recorded had indeed taken place. However, the applicant insisted that the recording had been tampered with and that the portions of the conversations attesting to the legitimacy of the requested payment had been edited out. In respect of the day when the alleged bribe had been paid, he indicated that he had not been in the office when O.V. had arrived. Nevertheless, G.P. had telephoned him and indicated that O.V. was in the office, where he was refusing to accept a copy of the decision suspending the execution of the decision of 28 November 2001 and insisted on talking to the applicant in person. When the applicant arrived at the office he had a conversation with O.V. During that conversation the applicant inquired whether O.V. had made the required advance payment. In response, O.V. produced some banknotes and placed them on the applicant’s desk. The applicant explained that the money had to be paid to G.P., and left O.V. in his office while he went to ask his colleagues for a seal. When the applicant returned to the office he saw that the money had disappeared from the desk and assumed that O.V. had taken it back. The applicant insisted that he had not touched the banknotes in question and said he could only assume that the special dye had appeared on his hands “in some other way”.
21.  The first-instance court did not give credence to the applicant’s testimony. It based his conviction on statements by the victim O.V. and ten witnesses. The relevant parts of their statements were as follows. O.V. stated that he had informed the police about the applicant’s attempt to extort a bribe because he did not have enough money to pay that bribe. The police had then performed various undercover operations, specifically the recording of the conversations between the applicant and O.V. and his lawyer S.Ž. On 18 December 2001 O.V. had received from the police LVL 500 in banknotes which had previously been marked. He also had an audio recording device. When O.V. arrived at the office, the applicant was not there. He arrived soon afterwards and went into his office with O.V. According to O.V.’s statement, the applicant took hold of the money, but did not count it, and instead placed it between some books on his desk.
22.  S.Ž. testified as a witness and stated that she had been present at meetings when the applicant had directly requested payment of a bribe. After O.V. had reported the attempted extortion of a bribe to the police, the police had performed various undercover operations.
23.  A police officer, R.B., testified that O.V. had complained to the police that a bribe had been extorted. In order to check that information and obtain evidence, telephone conversations and conversations between people were recorded. R.B. had handed over the recordings to the officer in charge of the investigation (izziņas izdarītājs). The content of the recordings had not been edited. In the course of an investigative test specially marked banknotes had been given to O.V., who had handed them to the applicant. Two other police officers including V.B., who had been in charge of the investigation, also denied that the recordings of the conversations had been edited.
24.  In her witness statement G.P. stated that when O.V. had arrived at the bailiffs’ office on 18 December 2001 the applicant had initially instructed her by telephone to give O.V. a copy of the decision suspending execution of the decision of 28 November 2001 and to receive a payment of LVL 500 from him. However, O.V. had wanted to see the applicant in person and had waited for him to arrive. G.P. considered that there was no legitimate reason to request a payment from R.L., since no costs had actually been incurred or were expected to be incurred in connection with the storage of M.’s property.
25.  The first-instance court also took into account a number of documents. One of the documents mentioned in the judgment was
“a draft of a decision ... [which] attests that [the applicant], on 19 November 2001, prepared a notification for [R.L.], indicating that the writ would not be executed unless a payment of LVL 500 was made to the bank account of the Riga City Vidzeme District Bailiffs’ Office [to cover] the costs of the storage of the seized property”.
26.  The first-instance court also considered a number of procedural documents related to the recording, analysing and transcribing of the applicant’s conversations, the marking of the banknotes issued to O.V., the detection of traces of the special dye on the applicant’s hands, and the search of his office. The recorded conversations were summarised in the judgment by stating that the applicant had requested a payment of LVL 500 to ensure that O.V. could continue to store the seized property. An expert had established that the recordings of the conversations had not been edited.
27.  Lastly, the first-instance court concluded that the evidence presented had been “gathered, confirmed [nostiprināti] and verified in accordance with the Code of Criminal Procedure”, and also that it was sufficient. It did note, however, that during the pre-trial investigation certain procedural documents had been drafted and procedural steps taken which had “various imperfections”. Nevertheless, the court found that, taking into account the body of evidence presented to it as a whole, these “imperfections” became irrelevant.
28.  Taking into account the evidence presented to it, the court decided to amend the charges brought against the applicant. The charge of extorting a bribe was accordingly changed to that of demanding a bribe, which was the offence of which the applicant was then found guilty. The sentence imposed consisted of five years’ imprisonment with confiscation of property.
29.  On 21 March 2005 the applicant appealed against the judgment of the first-instance court. He emphasised that on 17 and 18 December 2001 it had been O.V. who had insisted on meeting him in person in order to obtain a decision suspending execution. The applicant firstly noted that there were no practical or legal reasons for O.V. to demand such a decision, since the suspension of execution of decisions was an automatic corollary to the lodging of an ancillary complaint and did not require a separate decision. He also stated that it was noteworthy that O.V. could have obtained the decision from G.P. on two occasions, but instead had insisted on meeting the applicant in person. Taking those considerations into account, the applicant concluded that the only motivation for O.V.’s actions was the instructions he had received from the police. The applicant also complained about the first-instance court’s refusal to request the production of documents pertaining to the investigative measures taken in his case (operatīvās darbības lieta). He asked the appeal court to obtain the relevant documents from the police. In respect of the recordings of his conversations, he indicated that the unavailability of proper documentation made it impossible to determine by whom, when and where the conversations had been recorded. Accordingly, the applicant argued that the recordings should not be admissible in evidence. The applicant also disputed the legality of the search of his office, stating that his signature confirming that he had read the decision authorising the search had been forged.
30.  The Supreme Court adopted its judgment on 5 January 2006. It quashed the applicant’s conviction for abuse of an official position but upheld the conviction for demanding a bribe. The sanction remained unchanged.
31.  Before and during the appeal hearing the applicant and his counsel raised a number of issues pertaining to the legality and admissibility of evidence. As to the plea of incitement the appeal court held that “the testimony of [the applicant] that he was subjected to incitement (pret viņu veikta provokācija) ... is not confirmed by anything and is patent speculation”. As to the evidence used by the first-instance court more generally, the appeal court pointed out that “the examination and assessment of the evidence in the first-instance court was carried out without [sic] observing the requirements of the [Code of Criminal Procedure] while assessing the relevance and admissibility of the evidence”. It was further noted that although the first-instance court had established that certain errors had been committed while procedural documents were drafted and other procedural steps taken, the Supreme Court considered that those errors did not render the evidence in question inadmissible, since the information supported by that evidence was reliable and confirmed by other facts of the case. The appeal court concluded that the procedural defects identified by the first-instance court had not caused that court to adopt an unlawful and unfounded judgment.
32.  More specifically, with reference to the recordings of the applicant’s conversations the appeal court examined the police documentation concerning the investigative steps taken, and established the following. On 14 December 2001 the police had issued S.Ž. and O.V. with a dictaphone to record telephone conversations. On 17 December the initiation of an investigative operation was approved (tika apstiprināta operatīvās izstrādes ierosināšana). On 18 December an investigative test was approved in accordance with section 15(3) of the Law on Operational Activities. This was carried out in conformity with the legislation in force at that time. The appeal court further considered that the audio recording of the conversations of 14 December (thus before the operative investigation was initiated) was admissible as evidence, since the recording had been requested by O.V. and S.Ž. in accordance with section 7(6) of the Law on Operational Activities. Similarly the appeal court upheld the first-instance court’s conclusion that the search of the applicant’s office on 18 December 2001 had been authorised by a prosecutor and conducted legally. It emphasised that neither the applicant nor his counsel nor other persons present at the time of the search had expressed any objections.
33.  On 9 February 2006 the applicant lodged an appeal on points of law, which he amended on 14 February. In it he focused, inter alia, on arguments that his conviction had been based on illegally obtained and inadmissible evidence. More specifically he argued that:
- the courts had relied on evidence which was obtained on 14 December 2001, namely before a prosecutor had approved an investigative test;
- the police had used undercover agents, who had offered him a bribe. This activity had not been supervised in any way;
- section 7(6) of the Law on Operational Activities could not serve as a legal basis for recording the conversations of 14 December 2001;
- the courts had not assessed whether O.V. and S.Ž. had incited criminal activity. The applicant argued that the incitement and the courts’ refusal to review this issue violated Article 6 § 1 of the Convention;
- the search itself had been illegal, since it had been authorised by a public prosecutor and not by a judge; public prosecutors could authorise searches only in urgent cases. The courts had not assessed whether the specific occasion created such urgency.
34.  The applicant’s counsel also submitted an appeal on points of law. This asserted, among other things, that the search of the applicant’s office had been conducted illegally, since it had not been authorised by a judge.
35.  The final decision in the applicant’s criminal case was adopted by the Senate of the Supreme Court on 17 March 2006. The Senate dismissed the appeals submitted by the applicant and his counsel. As regards the admissibility of the evidence, the Senate held as follows:
“The conversations of [O.V.] and [S.Ž.] were not recorded as part of an undercover operation. The conversations recorded by [O.V. and S.Ž.] themselves and not by a body performing operational activities [nevis operatīvās darbības subjekts], which is why Article 1761 of the Code of Criminal Procedure and the Law on Operational Activities are not applicable to the recordings. Accordingly the [applicant’s] complaint that [the evidence is inadmissible owing to a violation of human rights] is unfounded.
As regards the search, from the materials in the case file ... it appears that it was carried out after authorisation by a prosecutor, in conformity with the requirements of the third paragraph of Article 168 of the Code of Criminal Procedure. [A] judge was [subsequently] informed in accordance with the procedure and within the time-limit established by law; accordingly, there is no reason to declare this procedural step unlawful.”
36.  On 30 April 2004 the applicant requested the State Police to assess the legality and adequacy of the procedural actions performed in the course of the pre-trial investigation of the criminal case against him. On 13 May 2004 the applicant was informed that jurisdiction over such questions lay exclusively with the prosecutors’ offices.
37.  On 20 June 2005 the applicant complained to the Prosecutor General. On 22 July 2005 a reply was given by a prosecutor of the Office of the Prosecutor General. The reply contained a reference to section 18(2) of the Law on Operational Activities, in accordance with which investigative operational activities could be launched before the initiation of a criminal case. The prosecutor explained that the investigative test had been authorised on 18 December 2001. As regards the recording of the applicant’s conversations, the prosecutor explained that this had been done by O.V., who was a private individual. According to the prosecutor, recording of conversations by a private individual – even if they were recorded by devices supplied by the police – did not constitute an investigative operational activity and consequently no authorisation by a judge or a prosecutor was necessary. Lastly, the prosecutor refused to inform the applicant of specific decisions and dates of decisions taken in the course of implementing operational activities, as “that information may not be used in criminal proceedings, since it has been declared a State secret”.
38.  On 15 August 2005 the applicant received a decision on his appeal against the reply he had received on 22 July. The reply was signed by a hierarchically superior prosecutor. In contrast with the previous response, this time a distinction was made between the conversations that had been recorded before and after the approval of the investigative test on 18 December 2001. According to the prosecutor, the Law on Operational Activities was not applicable to recordings of conversations made by private individuals, since the provisions of section 17(3) of that Law did not apply in such a situation. The recordings of the applicant’s conversations made before 18 December were legally permissible for that reason. As regards the recording made on 18 December 2001, it had been carried out in conformity with section 28(1)(2) of the Law on Operational Activities (this provision authorised law-enforcement officers “to create and utilise information systems and technical means [to carry out operational activities] and to record information”).
39.  On 29 August 2005 the same prosecutor who had provided the reply of 15 August amended her reply. She clarified that the conversation of 14 December 2001 had been recorded by one of the parties to that conversation and that that had been done “while operational activities were being carried out but not in the course of an investigative operational process”. In any case, the reply indicated that the recording of the applicant’s conversations did not need to be authorised by a judge (the exact wording of the reply appears to relate to the text of the Law on Operational Activities as in force from 1 October 2005 and thus after the completion of the pre-trial investigation and the adoption of the judgment of the first-instance court).
40.  The final reply on this subject was given to the applicant by the Prosecutor General on 21 September 2005. The Prosecutor General in substance upheld the lower-level prosecutors’ replies, adding that certain operational activities could be carried out “in a general way” (vispārējā veidā) without officially initiating an investigation (bez operatīvās uzskaites lietas ierosināšanas). Furthermore, those activities could be carried out with the consent of the supervisor of the investigator concerned, which did not have to be given in writing. Lastly, the Prosecutor General pointed out that the decision authorising an investigative test and the outline of that test contained information concerning the organisation and methods of carrying out such operations, and therefore constituted a State secret (see paragraph 49 below), which was, however, accessible to the investigators and judges dealing with the related criminal investigation.